Q: My county passed a COVID-19 public ordinance stating that citizens are prohibited from participating in public gatherings and can be fined or arrested for doing such. With the protests happening across the city, I can see this being an issue that could lead to many protester arrests that would have otherwise been peaceful. I have emailed the director of County Health Services and the Chief Administrative Officer who signed off on this ordinance to please clarify if protesters will be violating this ordinance since it is not clarified in the legal document itself. Also, this ordinance was not publicized to be passed to the general public. I had to Google the ordinance to find it, which I also feel is deceptive to the general public. Please let me know if this is legal or suppressing citizens’ rights to protest.
A: In general, the First Amendment to the Constitution guarantees American citizens the right to peaceably assemble. As the Supreme Court has recognized, however, individual liberty is not absolute, and can sometimes be restricted in the interest of public health. As an example, in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905), the Supreme Court upheld the authority of states to enforce compulsory vaccination laws, even though the law infringed on the individual liberty of citizens who did not want to receive a smallpox vaccine. As the Court stated, “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
As a result, we cannot state for certain whether the City’s public health ordinance is, on its face, an unconstitutional violation of citizens’ rights to assemble, or a permissible temporary restriction on individual liberties during a period of great danger to the public health.
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.